posted at 2:01 pm on June 26, 2013 by Allahpundit

I’m still working my way through the Prop 8 decision, but legal eagles who have read it are invited to help me out. Forget the gay-marriage stuff for a second and focus on the process. Am I right in understanding that the Court’s now essentially held that if the people of a state pass a popular referendum on whatever subject and then that referendum is challenged and struck down at the trial-court level, they have no right to appeal? They get one bite at the apple and then, if the executive decides he doesn’t like the referendum enough to choose to appeal it himself, there’s nothing a single member of the public can do to ask an appellate court to reconsider the lower court’s decision — even though many millions of voters voted directly to enact the law? That seems … odd.

In the DOMA case, a committee of the House of Representatives was allowed to intervene and appeal a lower-court ruling against a statute enacted by Congress when Obama’s DOJ refused to. Why, then, would the people be forbidden on standing grounds from intervening and appealing a statute that they passed themselves? Imagine that voters in Michigan pass a gun-control referendum, it gets struck down on Second Amendment grounds in the trial court, and then the Republican governor refuses to appeal. There’s nothing the people of Michigan can do except wait for the next election to vote him out? In that case, I don’t know why a state would hold referendums in the first place. Leave all bill-passing to the legislature and, if the governor refuses to appeal an adverse ruling on constitutionality, dump him when he’s up for reelection and/or get the legislature to intervene in court to appeal instead. Or, let popular referendums be held and also let the people defend them on appeal if the executive won’t. Why should the executive’s will trump the public’s will on laws passed directly by the public? Who’s really in charge in that conception of government?

Another question for legal eagles, since we’re on the subject. I realize the Court didn’t reach the question of whether state laws banning gay marriage violate equal protection, but float me a theory by which they don’t violate equal protection given this language in the DOMA holding:

DOMA’s principal effect is to identify a subset of state sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities. By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.

Tweak that paragraph just slightly and you have the argument for why states shouldn’t be permitted under the Fourteenth Amendment to ban gay marriage in the first place. The only wiggle room is in the suggestion that there might be no right to equal protection for married gay couples unless/until the state first grants them the right to marry by statute, but that’s hard to reconcile with precedent. The Court’s famous decision in Loving v. Virginia already held that marriage is a fundamental right for purposes of due process. The state doesn’t need to affirmatively grant it to you; you already hold it by virtue of being an American citizen. The question is whether the concept of marriage is intrinsically limited to heterosexuals only, but just look at the paragraph above. Pretty clearly five justices of the Court think it isn’t. So what’s left of state bans on gay marriage? As much as I agree with Philip Klein’s take on today’s rulings here, I think today’s paradigm of letting the states decide the issue is fleeting.

And apropos of nothing, I think Gabe Malor is right about the next big battle here. Legalized gay marriage is a fait accompli; the new frontier is whether business owners, i.e. public accommodations, will be required under discrimination statutes to transact with gays even if they have a religious objection. It’s coming.

Blowback

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Tell the libs on the Supreme Court that homosexuality is forbidden by Islam, and all Muslims are outraged at this ruling. They’ll overturn in an hour.

Done.

This is really not a complicated matter. The Supreme Court does not care about the Constitution or Constitutionality of Laws. Pretty sure the clause says, “Congress shall make no laws regarding the establishment of religion, nor prohibiting the free exercise thereof.” Except…what the Framers never imagined, was that the Supremes would become the enforcement wing of one political ideology, and wipe out that clause.
Because if your religion precludes homosexuality, guess what…You’re religion is no longer valid in this country. You are now FORCED to recognize a couple…even if they are precluded by your religion. Guess that whole Constitution thing and Bill of Rights thing…just really don’t matter to Libs. Just the whole ‘inclusive and fair…as long as you agree with us’ thing.

Gabe, like the district court judge, has too much vested interest in this case to be an honest agent. He’s made his decision, like JetBoy, in how it would benefit him and not whether it’s required by the Constitution.

I’m still working my way through the Prop 8 decision, but legal eagles who have read it are invited to help me out. Forget the gay-marriage stuff for a second and focus on the process. Am I right in understanding that the Court’s now essentially held that if the people of a state pass a popular referendum on whatever subject and then that referendum is challenged and struck down at the trial-court level, they have no right to appeal? They get one bite at the apple and then, if the executive decides he doesn’t like the referendum enough to choose to appeal it himself, there’s nothing a single member of the public can do to ask an appellate court to reconsider the lower court’s decision — even though many millions of voters voted directly to enact the law? That seems … odd.

No it doesn’t

Proper standing is a well established legal principle. The court does not have to consider a case if there is no proper legal standing of those who submitted the case.

It’s a good question and one that I’ve wondered about since Prop 8 happened.

It would seem SCOTUS ruling almost opens the door for that interpretation of popular referendums. I mean, the basis for challenging Prop 8 was that it unconstitutionally discriminated against gays.

What if, say, a state passes an abortion referendum…couldn’t groups sue and say it’s unconstitutional because it discriminates against women?

What if, say, a state votes for a Republican governor and legislature…couldn’t groups sue and say because Republicans support X, Y, Z issue and those issues are unconstitutional or discriminate against whatever group (minorities, women, gays) the election should be invalidated?

It sounds outrageous but who knows? I don’t rule out anything anymore.

Leave all bill-passing to the legislature and, if the governor refuses to appeal an adverse ruling on constitutionality, dump him when he’s up for reelection and/or get the legislature to intervene in court to appeal instead.

Isn’t that where we’re headed? The government is completely distrustful of the citizenchild in their care, and doesn’t think we are qualified to make any decisions. It’s apparent this attitude goes all the way to the SCOTUS.

Proper standing is a well established legal principle. The court does not have to consider a case if there is no proper legal standing of those who submitted the case.

Pretty basic.

chumpThreads on June 26, 2013 at 7:02 PM

Telling a group that was given the statutory right to represent the state’s interests regarding a proposition they advanced that it doesn’t have standing because they’re mere citizens subjects is not well-established legal principle.

They don’t have to sell gay wedding photos. (Somehow I doubt there is much of a market for gay wedding photos anyway, except perhaps as stock images.) They just can’t refuse to perform their services for a gay couple, simply because they’re gay. Not hard to understand here.

Armin Tamzarian on June 26, 2013 at 3:35 PM

Dude are you seriously that dense? Where do the pictures come from except from the photographer taking them? Where does the meat or cake come from if not from the butcher or baker?

It’s a good question and one that I’ve wondered about since Prop 8 happened.

It would seem SCOTUS ruling almost opens the door for that interpretation of popular referendums. I mean, the basis for challenging Prop 8 was that it unconstitutionally discriminated against gays.

What if, say, a state passes an abortion referendum…couldn’t groups sue and say it’s unconstitutional because it discriminates against women?

What if, say, a state votes for a Republican governor and legislature…couldn’t groups sue and say because Republicans support X, Y, Z issue and those issues are unconstitutional or discriminate against whatever group (minorities, women, gays) the election should be invalidated?

It sounds outrageous but who knows? I don’t rule out anything anymore.

englishqueen01 on June 26, 2013 at 7:10 PM

The first example is a definite candidate for a rogue AG to “finesse” his way past the legislature. All that is required is what happened in California – every elected entity allowed to defend state law run by Rats.

The second isn’t. Do recall that by the time the 2000 Florida Presidential recount became federalized, the cross cases were Gore v Bush and Bush v Gore, with the state of Florida and specifically the secretary of state not a primary party. Even if they weren’t specifically named, the GOP politicians would be an injured party with standing.

Right now all the libs are celebrating and saying we are crazy to say that this will be forced on Churches. It will. But while they are still saying that we need to get a Constitutional amendment protecting Churches from being persecuted because of the new protected class.

Here’s what will have to be done with popular referenda in the future:
a) Make them part of the State Constitution, so as to mitigate the changes the State supreme court can make.
b) Write into the referendum a right for private citizens to enforce in court the other legislation within the referendum. Reference the First Amendment of the Constitution, specifically the right of citizens to petition the government for a redress of grievances (in this case failure to enforce a law).
c) Write into the referendum the penalties to the government and to elected officials for failure to enforce, and make it possible for a private citizen to collect the penalty if they bring suit.

Here’s what will have to be done with popular referenda in the future:
a) Make them part of the State Constitution, so as to mitigate the changes the State supreme court can make.
b) Write into the referendum a right for private citizens to enforce in court the other legislation within the referendum. Reference the First Amendment of the Constitution, specifically the right of citizens to petition the government for a redress of grievances (in this case failure to enforce a law).
c) Write into the referendum the penalties to the government and to elected officials for failure to enforce, and make it possible for a private citizen to collect the penalty if they bring suit.

unclesmrgol on June 26, 2013 at 7:34 PM

The problem is:

a) Prop 8 was a California constitutional amendment that was, nonetheless, declared “unconstitutional”.
b) California had a law giving the primary group supporting Prop 8 the right to represent the state’s interest with respect to defending the proposition. That was explicitly ruled invalid for the purposes of federal standing by SCOTUS.
c) I’m sure that penalty would be tossed by the Lawgivers-In-Black either at the final state appellate level or at the first available federal level and thus completely unchallengable.

They just can’t refuse to perform their services for a gay couple, simply because they’re gay. Not hard to understand here.

Armin Tamzarian on June 26, 2013 at 3:35 PM

What you are arguing against is a private right of association. In other words, you are compelling one person to enter into a contract with another, rather than compelling the government to apply the laws equally to all.

So, if a church can refuse a gay couple the right of marriage within their sacred places, then not allowing a private person a similar refusal (on religious grounds) constitutes an establishment of religion by the Government, because it causes the religion of a group of people to be granted preference over the religious observance of a lone individual not associated with a church.

Conversely, if an individual has a right not to enter into a contract with gays if he or she does not want to, that right extends to a church (which is nothing more legally than a group of individuals).

There’s no acrobatics necessary to see that these two situations are identical from a Constitutional standpoint.

Here’s what will have to be done with popular referenda in the future:

The fundamental problem is not the way such things are written, but that the ruling class refuses to abide by ANY written law, instead “interpreting” any limitations on its power as invalid. So any revision in the law will fail because the people charged with enforcing the law will not do so.

I’d instead like to see a state, like say Texas, refuse to honor gay “marriage” and tell the feds to go pound sand.

This will escalate quickly I presume with Obama attempting to arrest the governor…but I think we’ve reached that point.

We have to make the LIV actually look at what is happening in front of them in a way they can’t ignore.

California had a law giving the primary group supporting Prop 8 the right to represent the state’s interest with respect to defending the proposition. That was explicitly ruled invalid for the purposes of federal standing by SCOTUS.

Hmm. I do not remember seeing such a law. That doesn’t mean it doesn’t exist, but if it does exist, then it seems that the plaintiffs failed to properly cite the law when appearing before the Supreme Court. If the State of California grants a private party standing to represent it in legal proceedings (which is what such a law would do), then it seems the Court was in error.

But, as we have seen from previous examples, the Court never considers arguments not explicitly brought before it. Perhaps that’s where the error originates.

Hmm. I do not remember seeing such a law. That doesn’t mean it doesn’t exist, but if it does exist, then it seems that the plaintiffs failed to properly cite the law when appearing before the Supreme Court. If the State of California grants a private party standing to represent it in legal proceedings (which is what such a law would do), then it seems the Court was in error.

But, as we have seen from previous examples, the Court never considers arguments not explicitly brought before it. Perhaps that’s where the error originates.

unclesmrgol on June 26, 2013 at 7:44 PM

They did assert that law. The 5 Lawgivers-In-Black, led by Turncoat Roberts, brushed that aside by saying they were mere subjec…er, private citizens who don’t have the rights bestowed on beknighted politicians.

Indeed, as part of that brushing aside, they noted they previously stripped two New Jersey legislators of standing mid-appeal because New Jersey law only authorized the Assembly Speaker and Senate President to defend state law in court, and they left those positions between the time the federal appeals court ruled on their suit and the time SCOTUS ruled on it.

Telling a group that was given the statutory right to represent the state’s interests regarding a proposition they advanced that it doesn’t have standing because they’re mere citizens subjects is not well-established legal principle.

Specifically, in this case, when asked by the Ninth Circuit whether the group that sponsored Prop 8 had the right to assert the state’s interest with respect to the amendment, the California Supreme Court said:

In a postelection challenge to a voter-approved initiative measure, the official proponents of the initiative are authorized under California law to appear and assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so.

But because the proponents of Prop 8 are mere subjects, the Lawgivers-In-Black rejected that.

The fundamental problem is not the way such things are written, but that the ruling class refuses to abide by ANY written law, instead “interpreting” any limitations on its power as invalid. So any revision in the law will fail because the people charged with enforcing the law will not do so.

18-1 on June 26, 2013 at 7:44 PM

The social contract only works so long as everyone, including government, agrees to play by the rules.

Progressives have learned that there are great advantages to not doing so, and no consequences. Which in their minds really only confirms their opinion of their own innate superiority.

Hunter S. Thompson only got it half right when he said,

Entire empires have been done in by vengeful freaks claiming a special relationship with God.

He forgot about the even greater number of polities which have been destroyed by even more vengeful freaks who believed that they, themselves, were in fact God.

Unfortunately, even though your kind feels free to try to make its own facts out of whole cloth, they’re ultimately not entitled to them.

Steve Eggleston on June 26, 2013 at 7:58 PM

The facts simply are, Steve.

In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party’s participation in the case.

What many of them want is to get society to believe that being gay is superior to being heterosexual.

Just as the populace has been brainwashed into believing that every intelligent person in history was actually a Liberal, they’re also being taught that every creative person in history was actually gay.

It’s like a religion to them and they need this to validate their messed up “lifestyles”.

It’s astonishing. We’re being manipulated to believe what certain minorities tell us in order to increase their power and make themselves feel better. And they feed off the guilt taught to them not only by the Liberal media, Liberal academia, but also by way of the Liberal churches and synagogues.

Dr. ZhivBlago on June 26, 2013 at 2:48 PM

You are correct, but it will never fix their neuroses. They know deep down they are sick and that’s why they beg for approval. God will not give their sinful behavior acceptance no matter how hard they try and cram it down society’s throat.

They don’t have to sell gay wedding photos. (Somehow I doubt there is much of a market for gay wedding photos anyway, except perhaps as stock images.) They just can’t refuse to perform their services for a gay couple, simply because they’re gay. Not hard to understand here.

Armin Tamzarian on June 26, 2013 at 3:35 PM

They aren’t refusing to take pictures of them because they’re gay. They’re refusing to take pictures of a sinful act that goes against their religious beliefs. We as Christians are not allowed to endorse sinful behavior or have you been living under a rock for all your life.

If a gay person wants to get married to someone of the opposite sex, the photographer would have no issue taking the pictures.

Creating new victims to make recompense to old victims is no way to fix a problem.

Liam on June 26, 2013 at 5:39 PM

I have clue no why you are talking about making recompense to old victims. I have never suggested such a thing, because it would go against my fundamental beliefs. The issue I am talking about is how we do change from the barbaric hateful views of the past about gay people. When we changed our ways about racism, we created many victims. George Zimmerman and Pauli Dean are the current victims of our efforts to minimize racism. I would like to see gay acceptance go forward with much less victims than our efforts to end racism have. I suggested more room for small businesses to be racist, homophobic, or whatever would be great for tolerance.

I’ll admit that I finding the rejection of the will of the California people troubling on several levels, but the history of this case and SSM in CA presented unusual circumstances. The Supreme Court had ruled that SSM was legal and then there was a window of some months where SSMs took place before the Prop 8 referendum. The giving of a right and then taking it away, coupled with the apparent inability of Prop8 proponents to prove actual harm and the refusal of the state to defend the law, provided a wrinkle in this case that isn’t actually a common occurrence.

Resist We Much on June 26, 2013 at 4:06 PM

BS. That is not what the Court said. You yourself in other comments have complained about the torturous route the Court went to decide these cases. Now you’re doing so yourself.

nrjob, you really should go back to the post where I discussed the tortuous route the Court has been known to take. If you have ANY reading comprehension skills, you will quickly understand that the post was in response to Liam’s about Bork, his book, and Roe. You will also notice that I specifically mentioned Blackmun, who’s dead and, obviously, couldn’t have said anything about the cases today, and Tribe.

And the other case that I described that way, specifically, on another thread was Brown, which could have been a single-line decision.

nrjob, you really should go back to the post where I discussed the tortuous route the Court has been known to take. If you have ANY reading comprehension skills, you will quickly understand that the post was in response to Liam’s about Bork, his book, and Roe. You will also notice that I specifically mentioned Blackmun, who’s dead and, obviously, couldn’t have said anything about the cases today, and Tribe.

And the other case that I described that way, specifically, on another thread was Brown, which could have been a single-line decision.

Resist We Much on June 26, 2013 at 8:41 PM

I have plenty of reading comprehension skills. If I misinterpreted ONE WORD in reading thousands today you’ll have to excuse me. I’m not writing a thesis in my remarks. I do not take kindly to your words and know you are factually incorrect on these cases. Reread Alito’s dissenting remarks and explain how he is incorrect. No opinion please.

As I suggested earlier, you really should read H-T so that you will understand what qualifies as a religious institution and also refer back to my post discussing federal v state discrimination laws.

Resist We Much on June 26, 2013 at 8:50 PM

By using the qualifier MANY you concede my point. What qualifies as a “religious institution” has been shrinking as the left remains on the attack in society.

Our Founding Fathers had Church services in Congress. They did not consider that defacto establishment of religion. But now allowing a prayer at a football game is considered oppression and not permitted.

H-T still has not protected Catholic adoption centers from attack by the government and will not protect private citizens in their “free exercise” of religious belief.

I’ll admit that I finding the rejection of the will of the California people troubling on several levels, but the history of this case and SSM in CA presented unusual circumstances. The Supreme Court had ruled that SSM was legal and then there was a window of some months where SSMs took place before the Prop 8 referendum. The giving of a right and then taking it away, coupled with the apparent inability of Prop8 proponents to prove actual harm and the refusal of the state to defend the law, provided a wrinkle in this case that isn’t actually a common occurrence.

Resist We Much on June 26, 2013 at 4:06 PM

Read Kuklowski opinion on Breitbart, we all may have misunderstood what happened today. According to him, and he seems to be pretty good on these issues, GULAG has Prop. 8 standing via today’s invalidation of appeals rulings by SCOTUS.

I really hope he is on the ball with this. Have no idea how Kennedy the idiot stated that will of the people and not the courts should rule the land and then promptly issued a court ruling on the matter. Does he read his own statements and opinions?

Read Kuklowski opinion on Breitbart, we all may have misunderstood what happened today. According to him, and he seems to be pretty good on these issues, GULAG has Prop. 8 standing via today’s invalidation of appeals rulings by SCOTUS.

I really hope he is on the ball with this. Have no idea how Kennedy the idiot stated that will of the people and not the courts should rule the land and then promptly issued a court ruling on the matter. Does he read his own statements and opinions?

riddick on June 26, 2013 at 9:06 PM

Interesting thought by Mr. Kuklowski, but Brown already said the decision enables him to give out marriage licenses to homosexuals and he’s going to do so. How will that play if Brown interprets it differently than Mr. Kuklowski since we already know he doesn’t respect the law?

March 2008: Gov Schwarzenegger agrees not to challenge decision and to oppose Prop 8

2 June 2008: Prop 8, which is titled ‘Eliminates Rights of Same-Sex Couples to Marry. Initiative Constitutional Amendment,’ is qualified by Secretary of State as a ballot initiative to be decided in next statewide general election

22 July 2008: Jansson v Bowen challenging the title of Prop 8 is filed contending that the Attorney General, Jerry Brown, used inflammatory language

8 August 2008: California Superior Court dismisses Jansson v Bowen because ‘[t]he title and summary is not false or misleading because it states that Proposition 8 would ‘eliminate the right of same-sex couples to marry’ in California’ and bases decision on the Supreme Court’s ruling in the In re Marriage Cases

8 August 2008: California Court of Appeal for the 3rd District rejects emergency appeal and Prop 8 proponents elect not to appeal to the California Supreme Court

4 November 2008: Prop 8 passes with same language used in Prop 22, but is in the form of an amendment rather than a statute

13 November 2008: California Supreme Court asks Attorney General to several lawsuits challenging the constitutional amendment by 17 November 2008

19 August 2009: Judge Vaughn Walker denies motion for intervenors and grants only a limited intervention by the City of San Francisco

11 January 2010: Trial begins

28 June 2010: United States Supreme Court rules in Christian Legal Society v Martinez that sexual orientation is is an identifiable class’ and that it is not ‘behavioural’

4 August 2010: Judge Walker rules that Prop 8 violates the due process and equal protection clauses basing some of his reasoning on the ruling of the US Supreme Court in Christian Legal Society v Martinez and finds that Prop 8 does not survive strict scrutiny. He also grants a temporary stay

I stand corrected. You’d think that any delegate of the State (whether an attorney hired by the state or a private citizen appointed by the state) would have the right to represent the state in this matter.

Seems not. Really stupid decision, totally out of accord with the 1st Amendment.

I stand corrected. You’d think that any delegate of the State (whether an attorney hired by the state or a private citizen appointed by the state) would have the right to represent the state in this matter.

Seems not. Really stupid decision, totally out of accord with the 1st Amendment.

unclesmrgol on June 26, 2013 at 10:06 PM

But entirely in line with the scam the EPA, the envirowhacko groups, and the pet district judge du jour are running. Stop me if you heard this before:

The EPA (California attorney general) wants to issue a new regulation (void a proposition) they believe they can’t make happen through normal channels. They invite a friendly group to sue, reach a “settlement” that just happens to be exactly what both the EPA and the group want (get the case to federal court and then cease to defend, thus handing the court victory to the “friendly” group), and nobody can do jack about it.

By using the qualifier MANY you concede my point. What qualifies as a “religious institution” has been shrinking as the left remains on the attack in society.

Our Founding Fathers had Church services in Congress. They did not consider that defacto establishment of religion. But now allowing a prayer at a football game is considered oppression and not permitted.

H-T still has not protected Catholic adoption centers from attack by the government and will not protect private citizens in their “free exercise” of religious belief.

njrob on June 26, 2013 at 9:01 PM

H-T dealt with FEDERAL LAW. Under the 10th Amendment, the State of Illinois, for example, can expand protected classes. The adoption cases deal with STATE LAW. Furthermore, adoption agencies must be licenced. The STATE regulates adoption agencies.

I’m well aware of the history of church and state in the US. Massachusetts had a state church. Read Vidal v Girard’s Executors decided in 1844 for a good idea as to how the Court looked at the separation of church and state. As late as 1892 (Holy Trinity v US), the Supreme Court was referring to ‘a Christian nation.’ Contrary to the popular belief of the Left, Thomas Jefferson’s Letter to the Danbury Baptists was just that: a letter. It had no effect of law whatsoever. The ‘wall between church and state’ was not adopted by the Court until Everson v Board of Education in 1947.

So, yeah, I kinda know the history.

Oh, if you don’t ‘take kindly’ or whatever to my tone, then refrain from throwing around the BS card when you misrepresented what I said about ‘tortuous’ routes taken. The post has NOTHING WHATSOEVER to do with either of the cases decided today.

I’m still working my way through the Prop 8 decision, but legal eagles who have read it are invited to help me out. Forget the gay-marriage stuff for a second and focus on the process. Am I right in understanding that the Court’s now essentially held that if the people of a state pass a popular referendum on whatever subject and then that referendum is challenged and struck down at the trial-court level, they have no right to appeal? They get one bite at the apple and then, if the executive decides he doesn’t like the referendum enough to choose to appeal it himself, there’s nothing a single member of the public can do to ask an appellate court to reconsider the lower court’s decision — even though many millions of voters voted directly to enact the law? That seems … odd.

That’s not odd at all. Once an initiative becomes law, initiative proponents have no greater interest than an ordinary taxpayer in that law’s enforcement and validity. And taxpayers do not have standing to challenge (or defend) a law based on generally available grievances (i.e., just because they don’t like it). A concrete, particularized interest in the particular case is needed. This is nothing new. It’s been the law for decades.

That’s not odd at all. Once an initiative becomes law, initiative proponents have no greater interest than an ordinary taxpayer in that law’s enforcement and validity. And taxpayers do not have standing to challenge (or defend) a law based on generally available grievances (i.e., just because they don’t like it). A concrete, particularized interest in the particular case is needed. This is nothing new. It’s been the law for decades.

righty45 on June 26, 2013 at 10:18 PM

Not in California – the official proponent of a proposition retains, even after the ratifying election, the right to assert the state’s interest in defending said proposition.

Let me walk you through what’s happened. The Supreme Court previously held that a state (in this specific case, New Jersey) can assign the right to assert the state’s interest in defending state law when the attorney general declines to defend said law to the Assembly speaker and Senate president, at least as long as the persons who hold those offices do so.

In California, that also extends to the proponent of a proposition with respect to challenges to said proposition. Indeed, in response to the 9th Circuit’s question of standing, the California Supreme Court specifically said that the group sponsoring Prop 8 had full authority to assert the state’s interest in defending the proposition even though the attorney general declined to defend it.

What Roberts and his merry band of Lawgivers-In-Black did was say that, despite their acceptance of New Jersey law that allowed an entity other than the attorney general to defend a state law over the objection of the AG, states can never assign the state interest in defending a state law before a federal court to mere subjects.

That tortured logic was necessary because Roberts wanted to give the states a couple years to do “voluntarily” what will be crammed down their throats shortly after Kennedy, Scalia or Thomas retire. It also has the “nice” (for the ruling class, that is) effect of completely neutering any future rabble from the unwashed subjects.

Not in California – the official proponent of a proposition retains, even after the ratifying election, the right to assert the state’s interest in defending said proposition.

The fact that state law authorized the initiative proponents to appear and assert the state’s interest cannot confer federal (i.e., Article III) standing on those individuals. They either have a particularized interest in the case or they don’t. Here, they don’t.

True, in some instances, individuals have been permitted assert the state’s interest for purposes of Article III standing. But those individuals were always either (i) state officials, or (ii) agents of the state (under traditional agency law principles). Prop 8 proponents are neither.

Any other result would be absurd. If states could waive a magic wand and confer federal standing on anyone (absent some formal or agency relationship), Article III would be rendered meaningless. California could give me (a heterosexual male in a different state) standing to challenge Prop 8, even though I have absolutely no concrete, individualized interest in the case. And because California would not have a principal-agent relationship with me, I could steer the litigation without any regard to the state’s interest I’m supposed to be representing.

Let me walk you through what’s happened. The Supreme Court previously held that a state (in this specific case, New Jersey) can assign the right to assert the state’s interest in defending state law when the attorney general declines to defend said law to the Assembly speaker and Senate president, at least as long as the persons who hold those offices do so.

Yes, but in Karcher, those individuals could assert New Jersey’s interest because they were state officials (Speaker and President of the NJ legislature). And when they lost their positions as officials, the Supreme Court held they lost their authority to prosecute the appeal.

Of course, here, the Proposition 8 proponents were never state officials to begin with. They’ve never been anything other than private parties, like you and me. And so they never possessed standing, at least once the law was passed.

That tortured logic was necessary because Roberts wanted to give the states a couple years to do “voluntarily” what will be crammed down their throats shortly after Kennedy, Scalia or Thomas retire. It also has the “nice” (for the ruling class, that is) effect of completely neutering any future rabble from the unwashed subjects.

Steve,

I share your general cynicism with respect to the Court’s standing jurisprudence. Properly understood, I don’t think the Court had standing over Perry or Windsor; the differing results can only be explained by jurisprudential horse-trading and/or a greater desire to get to the merits with respect to DOMA (which many conservatives and liberals alike find odious). But that does not change the fact that Roberts’ reasoning in Perry is dead on. State legislatures cannot confer Article III standing just by saying so.

Actually, the New Jersey case did just that, and up until the officers of the New Jersey legislature lost their positions, the Supreme Court accepted that those officers could overrule the attorney general. Further, the California Supreme Court, which by normal SCOTUS precedent has the final say on this type of issue, said the proponents of Prop 8 had the authority to assert the interests of the state with respect to Prop 8.

I humbly suggest you read the dissent. What the majority has wroght is the unilateral ability of the attorney general to invalidate any voter initiative he doesn’t like by encouraging some of his friends to sue, offering a weak defense that somehow survives through the state level, and then abandoning the case once it reaches the federal level.

The ruling means that, since States give the same marriage license to gay and straight couples, that the Federal government can’t distinguish between the two because then the Federal government is creating a division within marriages that doesn’t exist on the State level. But if the State has different marriage licenses for straight couples and civil union licenses for gay couples, that this doesn’t violate equal protection because the Federal government would be recognizing all the marriage (not civil union) licenses that the State issues. Put another way, arguing that different marriage and civil union licenses is a violation of equal protection is like saying that having different taxation levels for individuals and businesses is a violation of equal protection. Equal protection is not about eradicating the differences between legal entities but about ensuring that each legal entity encompasses everyone who is legally entitled to be a part of that entity.

Actually, the New Jersey case did just that, and up until the officers of the New Jersey legislature lost their positions, the Supreme Court accepted that those officers could overrule the attorney general. Further, the California Supreme Court, which by normal SCOTUS precedent has the final say on this type of issue, said the proponents of Prop 8 had the authority to assert the interests of the state with respect to Prop 8.

I think I address both these points in my 11:01 post, but to briefly reiterate: (1) in the New Jersey case, the intervening parties were state officials. The same is not true of the Prop 8 proponents. That distinction is critical when we’re talking about who can represent the state’s interest for the reasons discussed above. (2) SCOTUS most definitely does not “normal[ly]” give the final say to states on issues of Article III standing. It is a constitutional prerequisite to the exercise of federal jurisdiction. Federal courts do not (and constitutionally cannot) defer to states as to whether private plaintiffs have federal standing.

I humbly suggest you read the dissent.

Thanks Steve. I did. In fact, a professor I had the pleasure of studying under in law school years back (Henry Monaghan) wrote an amicus brief arguing the Court lacked standing. I recommend you read it, along with Walter Dellinger’s brief. The Court relied on Dellinger’s brief heavily, as the federal government, the petitioner, and the respondent did not brief standing in great detail (they (perhaps understandably) focused on the merits).

What the majority has wroght is the unilateral ability of the attorney general to invalidate any voter initiative he doesn’t like by encouraging some of his friends to sue, offering a weak defense that somehow survives through the state level, and then abandoning the case once it reaches the federal level.

Steve Eggleston on June 27, 2013 at 12:22 AM

That may be an unfortunate policy consequence, but (i) I think it’s preferable to eviscerating Article III by allowing states to confer federal court standing on anyone they wish, (ii) the situation you describe will happen exceedingly rarely, (iii) if the initiative is popular enough, the officials refusing to defend it will be voted out promptly anyway, and (iv) the initiative process in California is highly flawed. So frankly I don’t mind if it is undermined.

That may be an unfortunate policy consequence, but (i) I think it’s preferable to eviscerating Article III by allowing states to confer federal court standing on anyone they wish, (ii) the situation you describe will happen exceedingly rarely, (iii) if the initiative is popular enough, the officials refusing to defend it will be voted out promptly anyway, and (iv) the initiative process in California is highly flawed. So frankly I don’t mind if it is undermined.

righty45 on June 27, 2013 at 12:43 AM

How would it have eviscerated Article III. It wouldn’t allow states to confer standing to anyone they wished. It would allow interested parties, by time and money, to have standing to defend a legitimate law that was passed by the people that “our betters” decided is not in their interest to defend.

The situation involved is happening more often as referendums are used to counter non-representative legislatures.

If the initiative is popular enough… what does that even mean? It was popular enough to pass legally and through the initiative process. You think the legislature should get veto power to amend the Constitution retroactively? That this was passed in California of all places shows it was a major decision. The only people running for office are same-minded pod people. There are no legitimate citizens in the political culture.

You don’t care if the process is undermined because the result is one you support. You found Prop 8 and DOMA odious. So of course you’d find the initiative process “flawed.” That doesn’t make this good law. It, like Obamacare and other recent changes in the law, reduces Americans to mere subjects instead of citizens.

What the right needs to do is file a suit against a conservative state that only allows normal marriage and which will defend it vigorously before the USSC before it goes farther left. This will eliminate standing as an issue. Force them to deal with the issue on the merits sooner than later.

This morning Roger L. Simon of PJ media has written an excellant article to conservatives titled “Don’t Take the Bait on Gay Marriage”. All anti-gay marriage conservatives should read it and take his advice:

Easy, the people don’t count. Congress and the president & with some interest groups, can pass unpopular laws, can with influence argue before the courts, plain to see the people are frozen out. It’s getting worse.

I don’t think anyone gets the ruling. By saying that “the people” have no standing, SCOTUS has redefined the Constitution.
Instead of reading “We the People” it should now read “We the State” because the State is the only entity who has standing in matters of law. The people are irrelevant.

Why should the executive’s will trump the public’s will on laws passed directly by the public?

I am SHOCKED that Allah is advocating for a form of government different from the one that was designed for us. It goes to show that even conservative bloggers still just don’t get “it”. The “it” being our Constitution.

We are supposed to be a REPUBLIC. Our fore fathers DID NOT form a DEMOCRATIC form of government as they rightly saw it as “MOB RULE”.

Referendums do not belong in a Republic. They are mob rule. Period.

In that case, I don’t know why a state would hold referendums in the first place. Leave all bill-passing to the legislature and, if the governor refuses to appeal an adverse ruling on constitutionality, dump him when he’s up for reelection and/or get the legislature to intervene in court to appeal instead.

EXACTLY! Except that you correctly define a Repulican form of government, but you can’t seem to crossover to the realization that that IS what we are SUPPOSED to be.

…The civil service comes first and is legally binding. The marriage ceremony, if desired, follows but is not legally binding.

By getting the government out of the marriage business, the collision of rights that could impact First Amendment rights would be removed.

Resist We Much on June 26, 2013 at 3:24 PM

That makes no sense.

What do you think “a civil…legally binding” “service” is?

It’s GOVERNMENT activity.

You refer to that governmental activity as preferential in your advice to “get government out of the marriage business.” Which makes no sense, is self-contradictory.

The opportunities already exist for two adults to enter into any range or amount of “legally binding” contracts with one another, and that includes licenses issued by government to regulate if not control their relationship/s.

It’s that “governmental activity” that homosexuals are against, as you suggest you are (against such activity) in their demands to invade, yes, invade, the RELIGIOUS acknowledgement of themselves as “married”.

The goal all along has been and continues to be to force, coerce, demand, that religious bodies denounce their religious theology about homosexuality and to thereby bestow on homosexuals the “equality” they demand FROM THE RELIGIOUS THEOLOGY.

They want, then, that the Freedom of Religion be further corrupted to accommodate their demands, homosexuals do.

It’s not the civil licensing they’ve been after, it’s the corruption of religious freedom they’re after and continue to be. Thus, using legal system to threaten, harass, intimidate and impoverish just about anyone who disagrees with their goals (of forcing a corruption of religious theology).

Unfortunately for the theology involved, that corruption of theology has been accomplished by homosexuals, first in the creation of the Reform Judaism movement, then in a few of the higher-label Protestant organizations (Methodist, Episcopalian).

Their very theology has been denounced in order to accommodate “a change” granting all sorts of strange twists based on homosexual behavior, making those orgs now resemble social clubs with egotistical, dramatic names posing as religions but without sincerity to the religions themselves (Judaism, Christianity, respectively).

And it’s a creeping social demand among some Catholics, horribly — claiming Catholicism while practicing just about everything identified in the theology originally as the right thing to do versus the wrong thing.

Same as to our Constitution. Just because Progressives think something is so does not make it right and acceptable to these religions, nor where the Constitution is concerned.

“‘Gay’ marriage”…litany of Progressives, among others. It’s not the license they’re after, it’s the destruction of the religious — moral, ethical and academic theologically — premises, beliefs that they seek to corrupt.

So, yes, after June 26th SC decision/s, yes, private businesses AND religious organizations (and individuals) will be threatened nationwide with lawsuits if not deprived of liberty by most if not all of them.

It’s going to get worse. I do believe that the Left seeks to criminalize religious belief.

With note that Islam will remain sacrosanct to any criminalization. And that won’t be accidental or miraculous but well planned by the Left, right up until the time when they themselves are next on the list.